opportunity-china.co.uk
December 2014 7
An Environmental
Lawwith Teeth
C
hina is no stranger to problems with the
implementation and enforcement of the law,
and environmental laws are no different.
Overseeing China’s immense industrial sector
requires a legion of enforcement personnel, but the
number of people available to China’s environmental agencies
is small compared to that of theUnited States’ Environmental
ProtectionAgency. From a governmental standpoint, enhancing
environmental protection requires a great deal of political will
at the local level, something that has been severely lacking
in the past. The amended law tries to encouragemore public
participation, but lawsuits by individuals against polluting
industries often lack potency and struggle to overcome the
vested interests.
Opportunity China asks the experts their opinions on this
year’s amendment to China’s Environmental Law.
TheAmendment
The new law has a number of provisions that are significant changes from
before. There is a lot of attention paid to fines per day. Previously, if a polluter
violated the law they would be fined once and therewould be no additional
incentive for them to come into compliancemore quickly. Now, for each day that
a polluter continues to violate they can be fined additional amounts and the fines
increase the longer it takes for them to come into compliance. There are some
interesting enforcement provisions, such as the right to detain persistent violators
for 15 days, very interesting provisions on open information, public participation
and public interest litigation. The big question is how thesewill be implemented.
Punishing Violators
One of the fundamental problems in the past inChinawas that the
punishments for environmental violations were just not very significant.
T he new law is good in that it gives stronger authorities for punishment.
But the big question is will local regulators use those authorities? In the
past, when fines were capped at a relatively low level, often local regulators
wouldn’t even issue fines up to that very low cap. This has to dowith issues
of local protectionism; is the local regulator free to enforce strongly when local
governments feel a lot of pressure to push very rapid economic development?
Those kinds of structural tensions in the past have limited the ability of regulators
to enforce strongly, so the law is very good in that it expands on authority
and takes away the legal barrier for stronger enforcement, but the question
is, politically and as amatter of practice and implementation, can the local
regulators use these new authorities?
After the central government declaredwar on
pollution, the legislative process churned out an
amendment to the country’s Environmental Law in
April, which determined that polluting enterprises
can face even harsher punishments if they choose
to pollute their way to profit.
The amendment also gives enforcement personnel
the power to shut down heavy polluters if violators
fail to comply with regulations. But just because
there are laws in place doesn’t mean that the
desired outcomewill be achieved.
AlexWang isanAssistant Professor
of Lawat theUniversityofCalifornia,
LosAngeles. Until 2011he servedas
senior attorney for theNatural Resources
DefenseCouncil (NRDC)based inBeijing
andwas the foundingdirector of the
NRDC’sChinaEnvironmental Lawand
Governance Project.
Photography:CFP
